October 2020 Visa Bulletin: Fiscal Year 2021 Opens with Rapid Forward Movement for Employment-Based
The Department of State (DOS) Visa Office has released the October 2020 Visa Bulletin. Due to the unprecedented impact of the pandemic on immigration, in addition to presidential actions restricting immigration into the United States, green card quota backlogs will experience widespread improvement when the government’s new fiscal year (FY2021) begins on October 1st. Due to the slowdown of immigrant visa (green card) issuance, unused visa numbers from the family-based categories from last fiscal year will be added to this year’s employment-based (EB) visa allocation, increasing to approximately 261,500 from the normal annual quota of 140,000 immigrant visas.
All backlogged employment-based categories will experience significant forward movement per the Filing Dates chart for October. EB-1 China and India will both advance by over two years, while EB-2 and EB-3 China will advance by two months and approximately one year, respectively. Notably, EB-2 and EB-3 India, which traditionally face the most severe backlogs for employment-based immigrant visas, will respectively advance by nearly two years and five years. EB-3 Worldwide, which has been backlogged since February 2020, will finally return to “current” in October. The USCIS has confirmed that applicants may use the Filing Dates chart to determine their eligibility to file their green card applications, which means a massive increase in the number of eligible green card applicants when this bulletin takes effect on October 1st.
Anticipated Visa Availability in Upcoming Months
The DOS indicates in the bulletin that employment-based categories for China and India will potentially continue to experience rapid forward movement in the coming months, and that worldwide categories will continue to remain “current.” These projections are expected to happen monthly through January, but are highly subject to ongoing fluctuations in demand.
What This Means for Our Clients
We will notify our clients in the coming days of all employees who are eligible to file I-485 adjustment of status applications in the month of October. Over the next several months, many employees who currently have pending applications, may be eligible for final approval of their green cards, and employees who have been waiting for eligibility, may be able to file for their green cards. We will closely monitor pending and potentially eligible cases and coordinate with our clients and their employees accordingly.
The U.S. Citizenship and Immigration Services (“USCIS”) has confirmed that the Filing Dates chart must be used for employment-based categories for the month of October.
Application Filing Dates (when an immigrant visa or adjustment of status application can be filed). Foreign nationals with priority dates earlier than the dates for filing visa applications indicated in the Visa Bulletin chart below, or where noted as “C” for “current,” may file an immigrant visa application through the Department of State consular service (“consular processing”) during the applicable month. Such persons may also apply for adjustment of status (“I-485 application”) through USCIS in the United States, provided that USCIS has indicated on its website that the cut-off dates indicated on the Application Filing Date chart may be used for adjustment filings during the applicable month. If USCIS does not indicate that the Application Filing Date chart may be used for adjustment filings, the adjustment application must be filed based on the Final Action Date chart (see below).
Application Final Action Dates (when an immigrant visa or adjustment of status application can be approved). Foreign nationals with priority dates earlier than the final action dates indicated in the Visa Bulletin chart below, or where noted as “C” for “current,” may be approved for an adjustment of status application (I-485) or immigrant visa during the applicable month. The Final Action Dates Chart also determines when an adjustment of status application may be filed, unless USCIS indicates that the earlier Application Filing cut-off dates may be used to determine when the adjustment may be filed for that particular month.
Application Final Action Dates for October 2020*:
Dates for Filing Visa Applications for October 2020*:
* We have omitted the information for El Salvador, Guatemala, and Honduras, as well as the 3rd "Other Workers," 4th, and 5th Preference Categories from these charts. To view the full bulletin, please visit the Department of State Visa Bulletin page.
How Immigrant Visa Quotas and the Visa Bulletin Work
The Immigration and Nationality Act limits the number of employment-based immigrant visas that may be issued each year to a worldwide level of 140,000. The Act also allocates this limited number of visas based on preference category and country of birth, such that each country is subject to an individual per-country quota, in addition to the overall worldwide quota. For foreign nationals who are being sponsored by their employers for a green card, the most common preference categories are: the employment-based first preference category (EB-1), which is reserved for aliens of extraordinary ability, outstanding researchers, and multinational managers; the employment-based second preference category (EB-2), which is reserved for advanced degree holders  and aliens of exceptional ability; and the employment-based third preference category (EB-3) which is designated for professionals, skilled workers and “other” workers.
Due to the limited number of immigrant visas, combined with the very high demand for these visas, most foreign nationals are subject to significant backlogs that delay the process of obtaining permanent residency. These backlogs are expressed as “final action cut-off dates” in the Department of State’s monthly Visa Bulletin. The foreign national’s place in line for purposes of the quota backlogs is referred to as the “priority date.” In the employment-based context, the priority date is established on the date that the employer starts the green card process by filing a PERM labor certification application or immigrant petition on the foreign national’s behalf. Before the foreign national can be approved for a green card, the sponsored foreign national’s priority date must fall on a date that is earlier in time than the applicable final action cut-off date listed in the Bulletin.
As of October 2015, each month’s Visa Bulletin also includes a separate chart providing “filing cut-off dates,” which indicate when the last step of the permanent residency process may be filed. This two-tier Visa Bulletin, with separate cut-off dates for approval and final action, is designed to help the Department of State more accurately predict demand of green cards, and better regulate the number of green cards approved each year. It is believed that the two-tier Visa Bulletin system will reduce fluctuation in cut-off dates in the Bulletin each month, and reduce the number of "lost" immigrant visa numbers each year.
Note that where a preference category is not affected by a quota backlog for a particular country of birth, the cut-off date is indicated as “current” (“C”) in the Visa Bulletin. This means that the foreign national may apply for the final step of the green card process irrespective of his/her priority date.
 The EB-2 category is reserved for foreign nationals who possess either an advanced degree (master’s or higher), or equivalent, or qualify as an “Alien of Exceptional Ability.” The equivalent of an advanced degree is defined as a bachelor’s degree followed by five years of progressively responsible experience in the field. Note that where a bachelor’s degree and five years of experience are used to qualify for EB-2, the bachelor’s degree must normally be a 4-year “single source” degree, and must also be deemed equivalent to a U.S. bachelor’s degree. Also note that to qualify for EB-2 as an advanced degree holder, the position for which the foreign national is being sponsored must actually require an advanced degree or equivalent.